five protection visa applications refused, then sponsor wife died

Perth, March 23: Harjinder Singh born in 1988, arrived in Australia in February 2008 on a subclass 572 student visa which ceased on 15 March 2010. From 22 December 2010 to 19 July 2011, following the expiration of his student visa, he lodged four protection visa applications which were deemed to be invalid.  A fifth protection visa application, lodged on 6 October 2011, was refused on 20 January 2012.

On 30 July 2014, Mr Singh lodged an application for a Partner (Temporary) (class UK) (subclass 820) visa and a Partner (Residence) (class BS) (subclass 801) visa based on a spousal relationship.

In his partner visa application Harjinder stated that he was married on 27 November 2013 and was working and living with his partner.  His postal address was however different to his residential address and it was the address of his migration agents/advocates. Also his email address provided to the department was that of his migration agents who, were his agents authorised to receive communication on his behalf. Of course he stated that his relationship was genuine and continuing.

On 30 July 2014 his agents lodged his application and made submissions that the application was validly lodged.

On 6 August 2014, the Department acknowledged the the application but the next day an officer of the Department advised Harjinder’s agent by email that the partner visa application had not been validly lodged.  The issue was whether Harjinder met s 48 of the Act because, since last entering Australia on substantive visa, he was either refused a visa or had a visa cancelled.  The email noted that it was possible to lift the s 48 restriction and lodge a partner visa application, however conditions must first be met under the Regulations.  Forms declaring that the applicant and sponsor were in a married relationship, which forms were less than six weeks old at the time of lodgement, were required; as well as evidence showing that the declarants on the forms were Australian citizens or permanent residents.

To Harjinder’s bad luck, the documents got delayed and his application was rejected. He went to lodge an appeal. He rightly blamed a change in the migration agent’s office of the person handling his case. He provided email communication as the evidence of that reason.

Another reason he gave was that his migration agent, who was informed of the department’s refusal via email, took 12 days to inform him. This delay was significant loss of time because the application must be lodged to the MRT (AAT) within 21 days of the department’s date of decision.

Harjinder genuinely had a very compassionate circumstance which he thought the department and the MRT should have taken into account. His wife, his sponsor was suffering from a serious heart condition and was in need of his help and care. She was – receiving disability pension from Centrelink.

Harjinder was trying to make a case to Immigration department that his wife required him to be beside her and take care of her. That was the reason – in his mind – that Harjinder should not be asked to go back to India and lodge the application from there.

For the department, the question was – what evidence was presented that his wife would be unable to manage her condition if he were to depart Australia to lodge an offshore partner application.The department officer felt that the submissions and range of information provided, the existence of a genuine relationship is not, of itself, a compelling reason to waive the relevant criteria.

Sadly, while Harjinder was trying to sort out his life and visa status, his wife died. As a result, Harjinder ended up in the detention centre. The Court did not find in Harjinder’s favour and dismissed his appeal.

Relief still possible:

The dismissal of Harjinder’s appeal does not necessarily mean the end of the process. It is stioll open to the minister for Immigration if he or she so chooses, if not under the Migration Act, then under s 33(1) or (3) of the Acts Interpretation Act 1901 (Cth), to remake or vary the delegate’s decision.

If you or someone you know, is in similar situation, consult a professional migration agent for advice.

-R. Venugopal

Similar Posts by The Author: